We appreciate Mark Graber’s high
praise for our book, in particular his comment that “President Obama would do
well by having a copy of Ordered Liberty
at his side when making major constitutional decisions.” Moreover, we are
honored that he judges the book “a worthy successor to [Ronald Dworkin’s] Taking Rights Seriously.” Yet, he
confesses that he has “some impatience” with our offering multiple reasons or
grounds for supporting rights like reproductive freedom or same-sex marriage.
He reports: “Like a great many people, I suspect, when I have multiple reasons
for supporting a policy, I do not spend a great deal of time thinking about
which is really the strongest reason or otherwise trying to organize more
coherently those reasons I think justify the policy.” He also expresses skepticism
concerning scholars’ arguments that one justification for a controversial right
is better than another because of its implications for future cases.

Before reading Graber’s
response, we had thought there were two basic views concerning multiple justifications
for constitutional rights. One, represented by Dworkin and us, is that the
multiplicity of “textual homes” and justifications for rights like those to
procreative autonomy and same-sex marriage shows how richly justified, how
deeply grounded, those rights are in our constitutional order. The other view,
represented by Robert Bork and Justice Scalia, is that this shows that the
right is made up and has no genuine roots in the Constitution. Real rights, on
the latter view, hang on one clause and have one justification. Graber
illustrates a third view: impatience with or skepticism concerning the project
of working up and assessing multiple justifications for controversial
constitutional rights.

We urge Graber to develop more
patience with our project for three basic reasons. First, offering multiple
justifications for a controversial right in a diverse liberal democracy may
help build what John Rawls called an “overlapping consensus” in support of
protecting the right. Consider Lawrence
v. Texas (2003), recognizing a right of same-sex intimate association.
Minimalists worried about courts intruding too much on the political processes
might find Lawrence justified on
grounds of desuetude; progressives (including proponents of gay and lesbian
rights, feminists, and others) might find it justified on the ground of
securing the status of equal citizenship for gays and lesbians; liberals might
be persuaded by arguments rooted in individual autonomy as well; civic
republicans and other perfectionists might find arguments from the moral goods
fostered through protecting such intimate association more persuasive; common
law constitutionalists might believe the right justified by analogy to the
right of intimate association already recognized for straights and in
recognition of what Lawrence called
the “emerging awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in matters pertaining to
sex;” pragmatists and utilitarians might be persuaded by worries about the
consequences of not recognizing the right, e.g., that gays and lesbians who are
still in the closet might be blackmailed; and so on. Moreover, different
arguments may be more or less appealing to different social movements and cause
organizations seeking to vindicate such rights. Participants in such movements
and organizations make whatever arguments they find most salient and
persuasive, given their deeper and more general commitments, and work to
transform popular opinion to support protecting the right.

Second, offering new or
additional justifications for a controversial right may help persuade persons
not already persuaded to accept the right. Graber and Gerard Magliocca write as if doing so is futile, or simply preaching to the choir. We have
higher hopes concerning the possibility of persuasion through argument.
Consider the case of John Hart Ely, who in 1973 wrote a famous critique of Roe v. Wade’s recognition of the right
to privacy as the basis for the right of a woman to decide whether to terminate
a pregnancy. Yet in 1992, after the Supreme Court decided Planned Parenthood v. Casey, reaffirming and in effect rewriting Roe, Ely wrote a “fan letter” to the
authors of the joint opinion praising their opinion as “excellent”: “not only
reaching what seem to me entirely sensible results, but defending the refusal
to overrule Roe splendidly.” (Ely
published his letter, along with commentary on it, in his book, On Constitutional Ground.) He added: “Roe has contributed greatly to the more
general move toward equality for women, which seems to me not only good but
also in line with the central themes of our Constitution.” In that commentary,
he said that he now sees that Casey
is rightly decided, not just as a matter of stare decisis, but as a matter of
constitutional principle, our commitment to equality for women. What changed
Ely’s mind? Presumably arguments about, in Jack Balkin’s formulation, What Roe v. Wade Should Have Said.
Between Roe and Casey, judges and scholars developed better gender equality
arguments.

Furthermore, unlike Graber and
Magliocca, we see value in preaching to the choir. With some controversial
constitutional rights, like the right of a woman to decide whether to terminate
a pregnancy, some people who support the right nonetheless may have doubts or
uneasiness about its grounding. And some people who support the right to
same-sex marriage may have worries about how to distinguish it from polygamous
marriage (see our response to Eric Blumenson LINK). Working up additional and,
one hopes, more powerful justifications may be valuable in firming up support
for such rights and alleviating such worries.

Third, notwithstanding what we
said about the multiplicity of justifications helping to build overlapping
consensus, in some circumstances it really does matter how we justify a
controversial right. Consider again the example of Lawrence, recognizing a right of gays and lesbians to intimate
association. If we justify the right recognized in Lawrence on the ground that everyone has a right to choose to have
sex with anyone or anything in any circumstances they damn well please, then Lawrence may well, as Justice Scalia
warned in dissent, put us on a slippery slope leading to “the end of all morals
legislation,” including laws prohibiting bestiality and incest. By contrast, if
we justify Lawrence as protecting a
right of gays and lesbians to intimate association, by analogy to the right of
intimate association already recognized for straights, and if we justify that
right as necessary to secure the status of equal citizenship for gays and
lesbians by not demeaning their morally worthy way of life, then it does not
put us on that slippery slope. Such justifications suggest lines that we can
draw to avert it.

We are puzzled by Graber’s
suggestion that there are “diminish[ing] intellectual returns” in the
Dworkin/Fleming/McClain (and Sotirios Barber) project of interpreting the
Constitution so as to make it the best it can be. He says that “constitutional
theory ought to focus on avoiding really bad injustices” or “constitutional
evils.” Here Graber, like Thomas Hobbes, eschews the summum bonum and replaces it with the summum malum. We would argue that one way to avoid bad injustices
or constitutional evils is to interpret the Constitution in its best light.
Another way is to renounce debilitating skepticism and to join in our civic
liberal project of arguing for inculcating civic virtue and promoting moral
goods that are preconditions for responsible citizenship and a healthy liberal
democracy.

Graber closes by urging
constitutional theorists to turn to the “most fundamental threats” in our
current political predicament, stating: “In present circumstances, I would
prefer constitutional theory that helps us reach the happy ending of an
intelligent budget process than one more concerned with the precise ways
abortion can and cannot be regulated.” We share his concern with such issues.
In fact, one of us (Fleming) is organizing a conference to be held at Boston
University School of Law this fall on “America’s Political Dysfunction:
Constitutional Connections, Causes, and Cures.” The conference will ask whether
and, if so, how the Constitution has contributed to political dysfunction,
including exacerbating the “crisis of governance” (which includes inability to
maintain an “intelligent budget process”).

We are dubious about whether the
Constitution (as distinguished from larger forces in the political culture) has
caused or significantly contributed to current dysfunction in the budget
process. Perhaps the Constitution has done so by failing to prevent
developments in the electoral system and campaign finance that have facilitated
the polarization of American politics. Or perhaps the Constitution has
contributed to such dysfunction more generally through adopting the Madisonian
strategy in The Federalist No. 51 –
“supplying . . . the defect of better motives” by relying upon checks and
balances and making “[a]mbition . . . counteract ambition” – rather than by
also pursuing the mildly perfectionist strategy of inculcating civic virtues
that are necessary for responsible citizenship and for the success of the
constitutional order.

We are even more dubious about
whether any constitutional theory would “help[] us reach the happy ending of an
intelligence budget process.” Perhaps constitutional theory concerned with
institutional design could help us by designing structures to promote a more
“intelligent budget process.” And perhaps political scientists could help us by
proposing ways of improving the political culture by, for example, building
social capital (as Robert Putnam does). We would encourage such projects. We
just don’t see ourselves as fiddling while Rome burns by focusing on securing
ordered liberty through addressing the relationships among rights,
responsibilities, and virtues.

In closing, we implore Graber
(not to mention Sandy Levinson, who confesses to having lost interest in
constitutional interpretation and rights in favor of focusing on the
“hard-wired features of the structural Constitution”) to overcome their
“impatience” and skepticism concerning projects like ours. While they express
their impatience and skepticism, the battles among competing theories of
constitutional interpretation and concerning whether certain controversial
basic liberties should be protected continue unabated. If liberals and
progressives turn their backs on these issues, we fear that they will end up
fighting those battles with one hand tied behind their backs, to the detriment
of securing ordered liberty, equal citizenship for all, and other good
constitutional ends.